Khan v. Immigration & Naturalization Service

U.S. Court of Appeals for the Ninth Circuit December 28, 2001

Khan v. Immigration & Naturalization Service, 22 F. App'x 886 (9th Cir. 2001)

Opinion of the Court

MEMORANDUM **

Asif Soheal Khan, Añila Asif Khan, Suf-yan Asif Khan and Laareb Asif Khan, natives and citizens of Kenya,1 petition for review from the order of the Bureau of Immigration Appeals (“BIA”) denying their motion to reopen deportation proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1105a.2 We review for abuse of discretion the BIA’s denial of a motion to reopen, Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996), and we deny the petition.

The Khans contend that the BIA abused its discretion by denying their motion to reopen. We disagree because the Khans’ new evidence supporting their motion does not present a prima facie case for either asylum or withholding of deportation. See Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir. 1986); Larimi v. INS, 782 F.2d 1494, 1497 (9th Cir. 1986) (per curiam).

Although we agree that the BIA erred by requiring the Khans to address credibility in their motion to reopen, see Khan v. INS, No. 96-70133, 1997 WL 335015, at *1 (9th Cir. June 12, 1997), we conclude that the error was not prejudicial because the Khans failed to establish eligibility for asylum, cf. Maroufi v. INS, 772 F.2d 597, 600 (9th Cir. 1985).

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

. Añila Asif Khan is a native and citizen of Pakistan, but lived with her family in Kenya.

. Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997), and we therefore have jurisdiction under 8 U.S.C. § 1105a(a), as amended by IIRI-RA § 309(c), see Avetova-Elisseva v. INS, 213 F.3d 1192, 1195 n. 4 (9th Cir. 2000).

Reference

Full Case Name: Asif Soheal KHAN v. IMMIGRATION AND NATURALIZATION SERVICE
Status: Published